and with Articles 3 and 4 of the Law of the Republic of Lithuania on Privatization of Apartments 16 May 1995, Vilnius The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Algirdas Gailiûnas, Kæstutis Lapinskas, Zigmas Levickis, Vladas Pavilonis, Pranas Vytautas Rasimavièius, Stasys Staèiokas, Teodora Staugaitienë, Stasys Ðedbaras and Juozys Þilys, the secretary of hearing - Rolanda Stimbirytë, the party concerned - Vitoldas Kumpa, Head of the Legal Division of the Secretary Office of the Government and Juozas Cibulskas, Legal Adviser of the Public Utilities Enterprise of the Secretary Office of the Government, the representatives of the Government, pursuant to Part 1, Article 102 of the Constitution of the Republic of Lithuania and Part 1, Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, in its public hearing of 3 May 1995 conducted the investigation of Case No.1/95 subsequent to the petition submitted to the Court by Vilnius 2nd District Court requesting to investigate if the part of Resolution No. 985 of the Government “On the buildings in Vilnius which are not subject to privatization and which belong to the Public Utilities Enterprise of the Secretary Office of the Government of the Republic of Lithuania”, 28 December 1993, by which the building, situated at the address Vydûno str. 17, Vilnius, is included into the list of the buildings which are not subject to privatization, is in compliance with the Constitution of the Republic of Lithuania, as well as with
and with Articles 3 and 4 of the Law of the Republic of Lithuania on Privatization of Apartments. The Constitutional Court has established: The petitioner - Vilnius 2nd District Court investigated the civil case on 26 January 1995 according to the action brought in by the plaintiffs A. Aþubalis, J. Balnys, R. Jakubënienë, E. Jurgaitis, A. Petrauskas, A. Poðkus, K. Ðimkûnas and K. Valuckas against the respondent - the Public Utilities Enterprise of the Secretary Office of the Government, concerning the renewing of the term of putting in an application for privatization of residential premises and the obligation to conclude the purchase - sale agreement concerning the premises, situated at the address Vydûno str. 17, Vilnius, which are leased by them. The court passed the ruling to suspend the investigation of the case and appealed to the Constitutional Court requesting to investigate if the part of Resolution No. 985 of the Government “On the buildings in Vilnius which are not subject to privatization and which belong to the Public Utilities Enterprise of the Secretary Office of the Government of the Republic of Lithuania”, 28 December 1993, (“Valstybës Þinios”, No. 74
and with Articles 3 and 4 of the Law on the Privatization of Apartments, as well as item 2 of Article 94 of the Constitution. The petitioner points out in the request that said building was registered as a hostel according to 13 February 1992 Act No.161p of the Government. Conforming to item 3 of Article 7 of the Law of the Republic of Lithuania on the Initial Privatization of State Property, by the disputable resolution of the Government the residential house, situated at the address Vydûno str.17, Vilnius, is included into the list of the buildings which are not subject to privatization. Since the order of privatization of residential premises is established by the Law on Privatization of Apartments, the petitioner thinks that the disputable resolution, by which the building is included into the list of the buildings which are not subject to privatization, contradicts
The petitioner also points out that it is doubtful if said resolution does not contradict item 2 of Article 94 of the Constitution in which it is established that the Government implements laws, since in the case under investigation the Law on Privatization of Apartments is to be applied and not the Law on the Initial Privatization of State Property. By the disputable resolution of the Government, the plaintiffs, living in the premises allotted to them in Vydûno str., are deprived of the right and possibility, pursuant to the Law on Privatization of Apartments, to purchase the premises on dispute. II In the process of preparation of the case for the hearing of the Constitutional Court and in the court hearing the representatives of the party concerned have explained that the Public Utilities Enterprise of the Secretary Office of the Government is an enterprise of a specific purpose which main activity is to lease and maintain living and non - living premises, to repair them and carry out other services under the request of its founders. In order to implement these purposes the Government has transferred to said enterprise a certain number of buildings, among them residential houses as well. Seeking to improve the service of accommodating of foreign experts as well as to make it cheaper, as Lithuanian state institutions pay for accommodation of some experts, the Government by its 13 February 1992 Act No.161p commissioned Vilnius City Council to transfer the house of 36 apartments, situated at the address Vydûno str.17, Vilnius, into the balance of “Tekta” state enterprise. Conforming to Article 365 of the Civil Code this house was registered as a hostel. By 8 June 1992 Act No. 575p, “Tekta” enterprise of a specific purpose was reorganized and called the Public Utilities Enterprise of a specific purpose of the Governmental Staff (now the Secretary Office). According to the affirmation of the party concerned, this house is of special purpose, purchased on state assets and meant for temporary accommodation. All residential houses and hostels, pursuant to the Law on Privatization of Apartments, till 1992 were already transferred into a balance of a municipality or were privatized. The disputable building was acquired from the municipality for realization of the purposes of the enterprise. The building is acquired after privatization has been finished, and it constitutes the authorized capital of the enterprise, it therefore may not be privatized separately. It is not planned to privatize the entire enterprise either. The representatives of the party concerned have pointed out that former owners have put in their claims to their buildings which are in the balance of the Public Utilities Enterprise. In order to prevent the enterprises from selling apartments under commercial conditions, the disputable resolution of the Government was adopted. The party concerned states that the disputable resolution of the Government was even unnecessary, it was adopted only by seeking to clear out the position of the Government on this matter. The representatives of the party concerned has stated that pursuant to Article 4 of the Law on Privatization of Apartments local municipalities sell the residential premises which belong to them, and enterprises and organizations sell the residential houses and apartments which are in their balance. According to this Law the persons who permanently resided in the territory of the Republic of Lithuania till 3 February 1989 and who, on the day when the Law had been enforced, were the tenants of the house or flat subject to be purchased or were the members of the tenants’ families or who, after this Law had been enforced, were allotted a residential premise by established order. The tenant and the members of his family who have aquired the right of ownership to the purchased residential house, apartment, according to said Law may not privatize any other residential house, apartment. Due to these provisions the residential houses, which were in the balance of the state enterprise of the Secretary Office of the Government, as far back as 1991 were transferred into the balance of Vilnius City Seniûnija, and the tenants who wished to privatize apartments privatized them. Since recently fewer experts come to Lithuania, vacant apartments have been available in the building in Vydûno str.17, in Vilnius, and they have been leased under commercial conditions for the employees of state institutions. Residential premises have been allotted without keeping the order of the allotment of residential premises. Lease contracts of residential houses have been concluded, regardless any waiting lists, usually for one year, validity term of some contracts therefore is expired. Some persons once have already privatized the apartments or have acquired them somewhere else, thus, in the opinion of the party concerned, the tenants of the house in Vydûno str.17, in Vilnius, pursuant to the Law on Privatization of Apartments, have no right to privatize the apartments of this house. The Constitutional Court holds that: 1. Legal regulation of privatization of state property has been commenced by the Law of the Republic of Lithuania on the Initial Privatization of State Property, adopted by the Supreme Council of the Republic of Lithuania on 28 February 1991 and enforced on 10 April of the same year. Until the adoption of this Law privatization was not possible because by item 3 of the Resolution of the Supreme Council “On Economic Reform of Lithuania”, 26 July 1990, it was established: ”To prohibit to distribute property of state enterprises, kolkhozes and soviet farms by using shares, and to commission the Government to take measures for cessation of division, sale, as well as any other transference of the property of state enterprises, kolkhozes, soviet farms, state - co-operative enterprises and other state-owned enterprises, as well as to nullify all illegal actions and actions which violated law, performed till the adoption of this resolution”. It is established in
of the Law on the Initial Privatization of State Property of what enterprises, institutions, as well as other state-owned property (hereinafter property subject to privatization is referred to by the term “object privatization”) the initial privatization is regulated by this Law. It is established in Part 2 of the same Article that in addition to some other objects, ”the procedure and terms for the privatization of dwellings belonging to State and public housing funds shall be established by other laws of the Republic of Lithuania”. By this Article then, the objects, subject to privatization pursuant to the Law on the Initial Privatization of State Property, have been determined, as well as the property which privatization is regulated by other laws. It is established in Part 3 of Article 7 of the Law on the Initial Privatization of State Property, which has been observed by the Government while adopting the disputable resolution, that “Pursuant to the decrees of the Government of the Republic of Lithuania as well as directives, adopted by local governments of the higher level on the basis of these decrees, also other objects that are under the jurisdiction of the Government or local governments may be designated as not liable for Privatization. It may also be established that certain enterprises can operate only as state enterprises”. No exceptions are made in this Law for residential houses belonging to the state and public housing fund, as well as for apartments in many-flat houses and in hostels. Therefore, while solving questions of privatization of the apartments of this fund, the Law on the Initial Privatization of State Property may not be referred to. Their privatization is regulated by the Law on Privatization of Apartments which has been enforced since 30 June 1990. It has been established in
of the Law on Privatization of Apartments that ”the object of purchase - sale is residential houses belonging to the state and public housing fund, apartments in many-flat houses and in hostels (hereinafter referred to as “residential houses, apartments”)”. This part is set forth in the Law of 15 July 1993 as follows: “The object of purchase - sale is residential houses belonging to the state and public housing fund, apartments in many-flat houses, apartments and rooms in hostels (hereinafter referred to as “residential houses, apartments”)”. By this amendment the list of objects of privatization has been expanded. Pursuant to said Law the list of residential premises not subject to be sold, used for hostels, was narrowed. It has been established that only such rooms in hostels may not be subject to privatization “which are allotted to the students, graduates and post - graduates of the institutions of secondary, vocational, further and higher education in the procedure prescribed by the Government, as well as rooms in the hostels belonging to the Union of the Blind and the Weak- sighted of Lithuania, the Society of the Deaf and the Society of the Disabled of Lithuania”. Exceptions and restrictions concerning privatization of residential premises are pointed out only in the very Law on Privatization of Apartments. In it no restrictions of sale of the residential premises, which are in residential houses belonging to state enterprises, are established. The Government, by items 1, 2 and 3.4 of its 13 February 1992 Act No.161p, commissioned Vilnius City Council to transfer with reimbursement the house of 36 apartments in Vydûno str. 17, Vilnius, into the balance of “Tekta” state enterprise, for accommodation of experts and advisers of foreign states. By item 3.1 of this Act the Government has obligated “Tekta” state enterprise (the beneficiary of its rights is the Public Utilities Enterprise of the Secretary Office of the Government) to register in Vilnius City Council the house situated at the address Vydûno str. 17, Vilnius, as a hostel. It is registered as such by the warrant of 12 March 1992. Pursuant to
of the Civil Code workers, employees, students of higher as well as secondary education may be accommodated in hostels during their working or studying time. Contrary to items 1 and 3.4 of said Governmental Act, other persons are actually accommodated in the premises. Due to this situation, the discrepancy of legal status and actual state of the residential premises of the house in Vydûno str.17, Vilnius, has arisen. The Constitutional Court does not decide and estimate whether these premises conform to the status of a hostel or other premises since the establishment of existence or absence of juridical facts, their estimation and applying of legal norms in this case is the prerogative of the Court which investigates the civil case, and is not within the province of the Constitutional Court (
of the Constitution,
The Constitutional Court therefore does not estimate the compliance of the disputable resolution of the Government with Article 4 of the Law on the Privatization of Apartments. Taking into consideration the fact that the house in Vydûno str. 17, Vilnius, is registered as a hostel, the Constitutional Court concludes that the part of Resolution No. 985 of the Government “On the buildings in Vilnius which are not subject to privatization and which belong to the Public Utilities Enterprise of the Secretary Office of the Government of the Republic of Lithuania”, 28 December 1993, by which this building is included into the list of the buildings which are not subject to privatization, contradicts
2. It is established in item 2 of Article 94 of the Constitution and in item 2 of Article 21 of the Law on the Government of the Republic of Lithuania that the Government implements laws. Thus, legal acts adopted by the Government must not contradict laws, or change norms of laws, as well as their content. The Government by its resolutions may not change the procedure of privatization of the premises of the hostel which is established by law. Since the house in Vydûno str.17, Vilnius, is registered as a hostel, the Government by its disputable resolution has interfered into the regulated relations of the Law on Privatization of Apartments. The part thus of Resolution No. 985 of the Government “On the buildings in Vilnius which are not subject to privatization and which belong to the Public Utilities Enterprise of the Secretary Office of the Government of the Republic of Lithuania”, 28 December 1993, by which the building, situated at the address: Vydûno str. No.17, Vilnius, is included into the list of the buildings which are not subject to privatization contradicts Part 2 of Article 94 of the Constitution. Conforming to Article 102 of the Constitution of the Republic of Lithuania as well as Articles 53, 54, 55 and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following ruling: To recognize that the part of Resolution No. 985 of the Government of the Republic of Lithuania “On the buildings in Vilnius which are not subject to privatization and which belong to the Public Utilities Enterprise of the Secretary Office of the Government of the Republic of Lithuania”, 28 December 1993, by which the building, situated at the address: Vydûno str. No.17, Vilnius, is included into the list of the buildings which are not subject to privatization, contradicts Part 2 of Article 94 of the Constitution,
, as well as Article 3 of the Law of the Republic of Lithuania on Privatization of Apartments. This Constitutional Court ruling is final and not subject to appeal. The ruling is promulgated on behalf of the Republic of Lithuania. Justices of the Constitutional Court: Algirdas Gailiûnas Kæstutis Lapinskas Zigmas Levickis Vladas Pavilonis Pranas Vytautas Rasimavièius Stasys Staèiokas Teodora Staugaitienë Stasys Ðedbaras Juozas Þilys
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